Defendant appeals, now faces more prison time than before

Staff writer Robert Gavin reports on an appeal that went against an Albany County court sex crimes defendant – and how pressing for an appeal led an appeals court to rule he should have been convicted of some charges that he was acquitted of. He was sentenced to 10 1/2 years in prison, but now faces 45 years.

ALBANY — When criminals appeal their convictions, the risk is usually low.

The worst case scenario is typically rejection — and the upside could be a lesser sentence or new chance at freedom.

But for David Newkirk, a recent appeals ruling could keep him in state prison for nearly 35 more years.

Newkirk, now 60, was convicted at trial in 2006 of three counts of first-degree rape and another three counts of first-degree sexual abuse. It was for repeatedly molesting a teenage girl in May 2005.

Before Newkirk was sentenced, however, acting Supreme Court Justice Dan Lamont agreed with a defense argument. He tossed the rape count convictions finding legally sufficient evidence had not been established. In turn, Lamont sentenced Newkirk to a 10 1/2-year sentence.

Newkirk had been serving that stretch in Sing Sing Correctional Facility in Westchester County when he appealed his convictions for sexual abuse.

In a unanimous 5-0 decision, the Appellate Division rejected his appeal as well as a cross-appeal by prosecutors to reinstate the rape convictions. But the appeals court did find Newkirk should have been convicted of three counts of attempted first-degree rape at the trial in Albany County Court.

“Based upon our review of the record,” stated the decision, issued July 15, “the evidence was legally sufficient to sustain the lesser included offense of attempted rape in the first degree.”

When Newkirk is sentenced in August, he now faces a much as 45 years in prison. The sexual abuse term would run concurrently, prosecutors said.

“Appeal at your own risk,” said Christopher Horn, the special counsel to Albany County District Attorney David Soares. “In cases like this we will cross-appeal and seek to have the court impose a larger sentence

I’m having difficulty in believing that this Horn clown actually said what was written. This is tantamount to denying the right to appeal by coercion. This country is getting more like Nazi Germany every day!